CATHERINE M. SOLANO v. JOINT MEETING MAINTENANCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2053-06T32053-06T3

CATHERINE M. SOLANO,

Petitioner-Respondent,

v.

JOINT MEETING MAINTENANCE,

Respondent-Appellant.

_________________________________

 

Submitted: October 3, 2007 - Decided October 17, 2007

Before Judges Axelrad and Messano.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2000-036839.

Brause, Brause & Ventrice, attorneys for appellant (Peter Ventrice, of counsel and on the brief).

Garces & Grabler, attorneys for respondent (William N. Grabler, of counsel and on the brief).

PER CURIAM

The employer, Joint Meeting Maintenance, appeals from an order for judgment of the workers' compensation court dated November 2, 2006, following trial, entering an award in favor of petitioner, Catherine Solano, of 25% partial total permanent disability for an occupational injury to her back. Appellant does not challenge the determination that petitioner suffered an occupational disability to her back. Rather, it contends the judge failed to consider the evidence that petitioner sustained a prior traumatic work-related injury to her back in l998, and failed to provide a credit to the current award for petitioner's prior loss of function based on that injury. Appellant seeks a limited remand for calculation of the credit. We are not persuaded by appellant's argument and affirm.

Petitioner began working in l989 in appellant's office as a word-processing secretary. Her job was then upgraded to general office work which, in addition to typing, included carrying heavy reams of paper and archived files upstairs, placing files into a cabinet, and bending and filling the copier and fax machine. She testified that in May l998, she hurt her lower right lumbar area as she helped move a copier, visited the company doctor that day and did not miss any time from work. Petitioner did not file a compensation claim for that incident. She first sought medical treatment about two years later when she was treated for carpal tunnel hand problems. Petitioner testified that the l998 incident had a minimal effect on her -- "[i]t didn't hurt at first too much" -- and she felt better for a short while afterwards. Petitioner explained that her weakened back, however, became aggravated over a course of time by the repetitive, strenuous bending and lifting duties of her employment, causing significant problems and resulting in a decompressive laminectomy in May 2001.

Petitioner filed compensation petitions in November 2000, alleging she suffered occupational disabilities to her back and hands from repetitive work efforts in the course of her employment with appellant. Her orthopedic surgeon Dr. Arthur Tiger estimated a permanent partial back disability of 65% causally related to petitioner's work as a secretary. He provided detailed references to petitioner's job duties, subjective complaints and objective testing. Dr. Tiger testified he "would assume" some of petitioner's disability was due to the May l998 incident and some was due to her subsequent work efforts. He could not, however, apportion petitioner's disability between the l998 incident and the occupational claim. Dr. Tiger characterized the earlier episode as possibly being the "start" of petitioner's problems, but opined that that "the type of work she did subsequent to that caused the disc to further deteriorate and herniate and cause symptoms that I found."

Appellant's orthopedic surgeon, Dr. Armando Martinez, estimated that petitioner had a 5% partial total disability to her back regardless of cause. However, he believed "her problem was degenerative in nature, due to the wear and tear of all the human structures and not directly related to [petitioner's] occupation nor the [l998] accident."

Judge Womack credited the opinion of Dr. Tiger, which was consistent with petitioner's testimony that she was involved in a minor incident in l998, which caused temporary discomfort to her back but improved shortly thereafter and had minimal effect on her ability to work. The judge agreed that petitioner's back condition was then "aggravat[ed], accelerat[ed] and exacerbat[ed] . . . through the repetitive lifting, bending and carrying of heavy material" in her work duties. Based on the proofs presented at trial, the judge concluded that petitioner's "back started getting worse in 2000 up until August 2000" and set that date "as the time period for the occupational injury to the lower back as well [as] when the occupational aspect of the back manifested itself." The permanent disability award, orthopedic in nature, was entered on Claim Petition 2000-036839, and the employer appealed.

Appellant contends the compensation judge's finding contradicted the overwhelming evidence in the record provided by petitioner and both experts that petitioner's back disability was primarily caused by the May l998 copier accident and that the accident resulted in functional loss. It further contends petitioner offered nothing but "rather vague and minimal complaints about any occupational exposure that would have contributed to her condition," implying petitioner's evidence was insufficient to prevail in her occupational claim. Accordingly, appellant argues, Dr. Tiger's inability to apportion a specific disability percentage to the prior accident should not have been a bar to a damage allocation, and the compensation judge should have made an equitable apportionment of liability for that accident under Baijnath v. Eagle Plywood & Doors Mfrs., Inc., 261 N.J. Super. 309 (App. Div. l993). That not having been done, appellant seeks a limited remand for calculation of a credit under N.J.S.A. 34:15-12(d).

N.J.S.A. 34:15-12(d) provides, in pertinent part, as follows:

If previous loss of function to the body . . . is established by competent evidence, and subsequently an injury or occupational disease arising out of and in the course of an employment occurs to that part of the body . . . where there was a previous loss of function, then the employer or the employer's insurance carrier at the time of the subsequent injury or occupational disease shall not be liable for any such loss and credit shall be given the employer or the employer's insurance carrier for the previous loss of function and the burden of proof in such matters shall rest on the employer.

Thus, under the statute, appellant has the burden to prove a prior functional loss. Where a prior accident has only minimally contributed to a disability existing after that accident, and the second accident and injury is substantially the cause of the ultimate disability, then no deduction for award of the first injury is required. Minogue v. Lawrence Packaging Supply Corp., 115 N.J. Super. 310, 313 (App. Div.), certif. denied, 59 N.J. 290 (1971). In Baijnath, supra, 261 N.J. Super. at 315, we held that liability should be apportioned on some equitable basis in a situation where there are two compensable accidents, where the proofs show that each contributed substantially to the ultimate disability. While we held the party seeking a credit did not have to prove with certainty a prior functional loss resulting from the traumatic injury, it did need a reasonable basis in the facts. Id. at 315-16.

In a workers' compensation case, an appellate court's review is limited to "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). The compensation judge's factual findings and legal determinations must be given deference unless they are "'manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice.'" Lindquist v. Jersey City Fire Dep't, 175 N.J. 244, 262 (2003) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

It does not appear from the trial transcripts provided to us that appellant requested a credit for the May l998 incident. Even if such argument had been made, however, we are satisfied there was ample basis in the record to support the trial judge's findings. Contrary to appellant's assertion on appeal, neither petitioner nor any of the medical experts testified that petitioner's back disability was primarily caused by the May l998 copier incident. Nor did the evidence present a reasonable basis upon which to conclude there was a prior loss of function to petitioner's back that would entitle appellant to a credit on this disability award. Petitioner and her expert did not so testify. Nor did appellant's own expert, Dr. Martinez, who did not attribute any of petitioner's disability to either her occupational work efforts or the May l998 incident.

For a partial permanent disability to be awarded, a claimant must prove by demonstrable objective medical evidence a disability that restricts the function of the body or its members or organs; and must then establish either: (1) a lessening to a material degree of the claimant's working ability, or (2) the claimant's overall disability otherwise is significant and not simply the result of a minor injury. Perez v. Pantasote, Inc., 95 N.J. 105, 116-17 (1984). The testimony and evidence presented by petitioner and her medical expert, and credited by the trial judge, was that petitioner sustained a minor back injury when she helped move the copier at work in May l998, received one medical treatment and missed no time from work for this injury until almost three years later, and the condition improved shortly after the incident but was subsequently aggravated by a long series of microtraumas caused by her work duties, ultimately requiring back surgery. Dr. Tiger causally related petitioner's injuries and permanent disability to her occupational work efforts; he did not allocate any percentage of disability to the l998 incident. Nor was there any testimony or demonstrable evidence that the May l998 event resulted in a permanent disability, lessened to a material degree petitioner's working ability or in and of itself caused any otherwise significant overall disability. Moreover, appellant presented nothing more than mere speculation of prior functional loss from the l998 incident, which was certainly not competent evidence as required by N.J.S.A. 34:15-12(d) to merit an equitable apportionment of liability and credit against the current disability award.

Affirmed.

 

The award on Claim Petition 2000-36837 relating to occupational disability to petitioner's hands is not under appeal.

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A-2053-06T3

October 17, 2007